Kubicki v. Sharpe
306 Mich. App. 525
| Mich. Ct. App. | 2014Background
- Holly Kubicki is an active Army member; Dale filed a change of custody motion in Nov 2012 before Holly’s enlistment, so the statute’s timing is key.
- The 2005 judgment gave Holly sole legal and physical custody with Dale’s reasonable parenting time.
- Dale’s 2012 motion claimed Holly’s deployment would disrupt custody; the referee found no grounds for a custody change.
- Holly enlisted Jan 2013, completed basic training, deployed May 2013; she planned on-base housing with her family; Kubicki faced PTSD-related issues.
- The circuit court ruled the military-duty provision barred a custody change, but later vacated and remanded due to failure to consider the child’s wishes and need for a full best-interest analysis.
- The court ultimately vacated its order and remanded for a new custody hearing, citing the child’s preference was not considered and the need to reevaluate the custodial environment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MCL 722.27(1)(c) barred a custody change given timing | Kubicki: statute permits change because Dale’s motion predated active duty. | Dale: provision blocks changes while a parent is on active duty; temporary order possible only with clear and convincing evidence. | Statute did not bar a custodial change due to timing; remand warranted for proper best-interest analysis. |
| Whether the circuit court applied the proper standard of proof for a custody change | Kubicki: court should have applied Vodvarka threshold and clear and convincing evidence for best interests. | Dale: court properly evaluated best interests under applicable standard. | Court used proper framework but must explicitly identify custodial environment on remand. |
| Whether the best-interest factors supported a temporary custody change | Kubicki: evidence favored continued custody with Holly; no change warranted. | Dale: factors favor temporary placement with him. | On remand, reweigh factors including child’s preference and establish custodial environment. |
| Whether the child’s preference must be considered in the best-interest analysis | Kubicki: court erred by not interviewing the child; denial of factor (i) weight was error. | Dale: parties did not want child interviewed. | Child’s preference must be considered; remand for custody hearing with proper consideration of the child’s wishes. |
| Whether the court properly identified the established custodial environment | Kubicki: environment must be identified with factual findings; court failed here. | Dale: environment should be based on prior arrangements. | Explicit finding required; remand to reanalyze custodial environment and best interests. |
Key Cases Cited
- Vodvarka v. Grasmeyer, 259 Mich. App. 499 (Mich. Ct. App. 2003) (establishes posture for change-of-custody standard and burden of proof)
- Fletcher v. Fletcher, 447 Mich. 871 (Mich. 1994) (great-weight standard; review of factual findings)
- Hayes v. Hayes, 209 Mich. App. 385 (Mich. Ct. App. 1995) (establishes focus on prior custodial environment and stability)
- Ireland v. Smith, 451 Mich. 457 (Mich. 1996) (factor-based analysis of permanence of custodial home)
- Bowers v. Bowers, 190 Mich. App. 51 (Mich. Ct. App. 1991) (child’s preference considered for sufficient age)